Donald Trump v. The Federal Judiciary
President Trump's latest attack on the Federal Judiciary prompted a rare rebuke from the Chief Justice of the United States.
On Wednesday, Chief Justice Roberts took the unusual step of responding to comments that President Trump made attacking the Federal Judiciary:
WASHINGTON — Chief Justice John G. Roberts Jr. defended the independence and integrity of the federal judiciary on Wednesday, issuing a statement rebuking President Trump’s criticism of a judge who had ruled against the administration’s asylum policy.
The chief justice seemed particularly offended by Mr. Trump’s assertion that Judge Jon S. Tigar, of the United States District Court in San Francisco, was “an Obama judge.”
Chief Justice Roberts said that was a profound misunderstanding of the judicial role.
“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” he said in a statement. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”
Chief Justice Roberts issued his statement in response to a request for comment from The Associated Press about Mr. Trump’s remarks on Tuesday concerning the asylum ruling, which ordered the administration to resume accepting asylum claims from migrants no matter where or how they entered the United States.
More from The Washington Post:
Chief Justice John G. Roberts Jr. directed a rare and pointed shot at President Trump Wednesday, defending the federal judiciary in the wake of Trump’s criticism of an “Obama judge” who ruled against the administration’s attempt to bar migrants who cross the border illegally from seeking asylum.
“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said in a statement released by the court’s public information office. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”
Delivered on the eve of Thanksgiving, Roberts added: “That independent judiciary is something we should all be thankful for.”
Supreme Court justices, and the chief in particular, almost never issue statements on news events. So it appeared Roberts was eager to counter Trump’s criticism when asked to comment by the Associated Press. The statement did not mention the president.
The chief justice is an aggressive defender of the judiciary, and has frequently expressed worries about attacks on its impartiality, whether they come from the left or the right. He had made it clear last month that he felt the recent partisan battle over the nomination of Justice Brett M. Kavanaugh had cast a shadow on his own court.
At an event at the University of Minnesota just after Kavanaugh’s confirmation, Roberts sought to assure that the court served “one nation” and not “one party or one interest.”
“Our role is very clear: We are to interpret the Constitution and laws of the United States, and to ensure that the political branches act within them,” he said. “That job obviously requires independence from the political branches. The story of the Supreme Court would be very different without that sort of independence.”
The President’s remarks came as he was departing the White House for the Thanksgiving holiday on Tuesday in response to a question regarding the decision earlier this week by Federal District Court Judge Jon Tigar striking down the Administration’s efforts to place severe limits on the rights of migrants to seek asylum. In his ruling, Judge Tigar found that the Administration’s policy, which purported to limit legitimate asylum claims to those people who present themselves at a designated port of entry into the United States. Under Trump’s policy, persons already in the United States, whether legally or illegally, or who enter the United States anywhere other than a designated port of entry would be ineligible to seek asylum, violated Federal law. As Tigar notes in his opinion, the relevant statute provides that asylum can be claimed by anyone regardless of legal status, at any time, and regardless of whether or not they make the claim at the time they enter the country or at a later date. This is also reiterated by other statutes governing the asylum process as well as international treaties on the treatment of refugees to which the United States is a signatory. As a result, Judge Tigar found, the Trump Administration had exceeded the authority granted to it by Congress and the relevant law by seeking to limit asylum seekers to just one option in what is clearly an effort to discourage migrants from seeking asylum. Responding to that ruling, Trump went on to attack not just Judge Tigar ruling, but the entire Judiciary of the Ninth Circuit:
WASHINGTON — President Trump lashed out on Tuesday against the United States Court of Appeals for the Ninth Circuit, based in San Francisco, calling it a lawless disgrace and threatening unspecified retaliation.
“That’s not law,” he said of the court’s rulings. “Every case that gets filed in the Ninth Circuit we get beaten.”
“It’s a disgrace,” Mr. Trump said.
Mr. Trump’s remarks came after a federal trial judge ordered the administration to resume accepting asylum claims from migrants no matter where or how they entered the United States.
The ruling was issued by Judge Jon S. Tigar, of the United States District Court in San Francisco, and not by the Ninth Circuit itself, which hears appeals from that court and others in nine western states. The appeals court’s geographic jurisdiction is also sometimes called the Ninth Circuit.
“This was an Obama judge,” Mr. Trump said of Judge Tigar, who was indeed appointed by President Barack Obama.
Mr. Trump, who has suffered losses in courts across the nation, said he was frustrated by the ability of plaintiffs to file challenges to his administration’s policies in the Ninth Circuit.
It is true that plaintiffs who have a choice tend to file their lawsuits in courts they hope will rule in their favor. Plaintiffs challenging the Obama administration’s health care, immigration and other programs often filed their lawsuits in Texas before conservative judges. The State of Texas alone sued the Obama administration at least 48 times, according to a survey conducted by The Texas Tribune.
Mr. Trump said courts in the Ninth Circuit always ruled against his policies. “Everybody that wants to sue the United States, they file their case in the Ninth Circuit, and it means an automatic loss no matter what you do, no matter how good your case is,” he said.
That was an overstatement, though the administration’s track record in the Ninth Circuit has been poor. Just this month, a three-judge panel of the appeals court ruled that Mr. Trump could not rescind the Obama administration’s protections for some 700,000 “Dreamers,” young immigrants who were brought into the United States illegally as children
Also this month, a federal trial judge in Montana, which is part of the Ninth Circuit, blocked Mr. Trump’s decision to allow construction of the Keystone XL oil pipeline, saying the administration failed to present a “reasoned explanation” for the move and “simply discarded” the effect the project would have on climate change.
Mr. Trump pointed out on Tuesday that the Supreme Court in June had reversed a ruling from the Ninth Circuit blocking his order limiting travel from several predominantly Muslim nations. Mr. Trump vowed to win the asylum case in the Supreme Court, too.
The Ninth Circuit has a reputation for being frequently reversed by the justices, but its reversal rate is only a little higher than average and not as high as that of some other circuits.
Mr. Trump vowed to take steps to address his unhappiness with the court. “I’ll tell you what,” he said, “it’s not going to happen like this anymore.” But it was not clear what he proposed to do.
“The Ninth Circuit is really something we have to take a look at because it’s not fair,” he said. “People should not be allowed to immediately run to this very friendly circuit and file their case.”
The President had more to say on his Twitter feed in response to the Chief Justice:
Sorry Chief Justice John Roberts, but you do indeed have “Obama judges,” and they have a much different point of view than the people who are charged with the safety of our country. It would be great if the 9th Circuit was indeed an “independent judiciary,” but if it is why……
— Donald J. Trump (@realDonaldTrump) November 21, 2018
…..are so many opposing view (on Border and Safety) cases filed there, and why are a vast number of those cases overturned. Please study the numbers, they are shocking. We need protection and security – these rulings are making our country unsafe! Very dangerous and unwise!
— Donald J. Trump (@realDonaldTrump) November 21, 2018
“79% of these decisions have been overturned in the 9th Circuit.” @FoxNews A terrible, costly and dangerous disgrace. It has become a dumping ground for certain lawyers looking for easy wins and delays. Much talk over dividing up the 9th Circuit into 2 or 3 Circuits. Too big!
— Donald J. Trump (@realDonaldTrump) November 21, 2018
Justice Roberts can say what he wants, but the 9th Circuit is a complete & total disaster. It is out of control, has a horrible reputation, is overturned more than any Circuit in the Country, 79%, & is used to get an almost guaranteed result. Judges must not Legislate Security…
— Donald J. Trump (@realDonaldTrump) November 22, 2018
….and Safety at the Border, or anywhere else. They know nothing about it and are making our Country unsafe. Our great Law Enforcement professionals MUST BE ALLOWED TO DO THEIR JOB! If not there will be only bedlam, chaos, injury and death. We want the Constitution as written!
— Donald J. Trump (@realDonaldTrump) November 22, 2018
Nothing about the Trump presidency has been as disturbing as his unrelenting attack on the federal judiciary – starting all the way back at least as far as his comments during the campaign about the “Mexican judge” who was presiding over the Trump University lawsuit, up to his recent tirades against the 9th Circuit’s “Obama judges.” He is not the first President to get publicly angry at actions taken by the federal courts. But he is the first President to so relentlessly characterize judicial decision-making as an overtly partisan political act, where “Obama judges” issue their (politically-motivated) rulings – Boo-o-o! – and “Trump judges” issue their (politically-motivated) rulings – Ya-a-ay!. It’s all just politics, played out in a courtroom.
His words have real consequences, and the consequences here are very serious and very troubling, even frightening. If Americans come to believe that federal judges are nothing more than partisan politicians wearing robes, that there are Democratic judges issuing Democratic decisions and Republican judges issuing Republican decisions, we are one step away from a very frightening precipice, one where Democrats believe they are entitled to disregard Republican decisions and Republicans believe they are entitled to disregard Democratic decisions.
Judicial systems can crumble, leaving nothing but power and might, force and terror, as ruling principles; they have done so, repeatedly, throughout human history. We should perhaps accept Chief Justice Roberts’ invitation on this Thanksgiving day to be thankful that ours has not done so, and to speak out against, and resist, efforts to make it do so.
As we saw when he was a candidate, Trump has absolutely no inclination to refrain from attacking the legitimacy of the legal system. The most prominent example, of course, came in his attacks on the Federal District Court Judge who was presiding over the fraud lawsuits against him and his now defunct business venture “Trump University.” In those attacks, Trump referred to the Judge, Gonzalo Curiel of the U.S. District Court for the Southern District of California as a “Mexican”notwithstanding the fact that he was born in Indiana, contended that his ‘Mexican heritage’ created some sort of conflict of interest, and claimed that Curiel was “biased” and “unfair.” In retrospect, it’s clear that Trump’s attacks were related to Judge Curiel’s decision to authorize the release of documents related to the ongoing lawsuit, documents that clearly show the extent to which Trump’s so-called “University” was little more than a fraudulent marketing scheme. In reality, though, an examination of Judge Curiel’s rulings in the case demonstrated no evidence of the bias Trump allegedly.
As I noted back when Trump was still just a candidate, I made note of his obvious contempt for the Rule of Law:
Based both on his rhetoric and his actions, Donald Trump gives the impression of being a President who sees himself as unconstrained by the law or the other branches of Government in the tradition of Jackson or Richard Nixon, both of whom set off Constitutional crises from which it took the nation years to recover. As in the case of those two previous Presidents, he would likely justify his actions by appealing to the same populist, anti-establishment rhetoric that has fueled his campaign from the start. The difference is that, this time, he would be President of the United States and his rhetoric would be tied to action that could do real damage to the Rule of Law and to the Constitution. Furthermore, unlike any of his predecessors, Trump seems to have command over a mob of supporters that would rush to his defense even when he was clearly wrong. This is why the arguments that equate Trump to the European far right, and even to fascists and authoritarians of the past, are completely on the mark. Either Donald Trump is lying to his supporters or he is the kind of man who cannot be trusted with political power even in a Constitutionally limited democratic republic. Under the circumstances, it would be foolish for anyone to believe that this is all a big con on Trump’s part, and much safer to assume that he quite simply cannot be trusted with political power.
His time in office has proven my assessment regarding how Trump would act have largely proven to be correct. Whether its the recent comments that I note above or his actions such as seeking to pressure James Comey and the heads of the intelligence agencies to end the investigation of former National Security Adviser Michael Flynn, his decision to fire James Comey because of the Russia investigation, or his numerous attacks on his own Attorney General, Trump has demonstrated the same utter contempt for the rule of law that he did as a candidate. And he does it all with the seeming approval of his supporters and the vast majority of his fellow Republicans. In any other President, it would be a President. With this President, it’s just another day in office, and it’s going to get worse before it gets better.
Given all of that, and his latest attack on the Ninth Circuit, which is not supported by the available evidence, it’s no wonder that Chief Justice Roberts chose to spoke out in the way that he did. In the thirteen years that he’s been in office, the Chief has shown that ideological differences aside, he cares deeply about the integrity of not just the Supreme Court but of the entire Federal Judiciary. While he has largely stayed quiet in the past when the President has attacked individual Judges such as Judge Curiel it’s obvious that this is an issue that has been on his mind for some time now. The fact that he spoke out now rather than sooner is likely just a function of Trump having finally reached the point where even the norm of a Federal Judge remaining quiet while one of the political branches attacked his brethren has finally reached a breaking point, Quite frankly, I don’t think it’s a good thing that Judges now feel the need to inject themselves into a political argument like this, but we’re dealing with a President who obviously does not care about the Constitution or Separation Of Powers. Someone needs to send him the message that enough is enough, and if Republicans on Capitol Hill aren’t going to do it then I suppose the Chief Justice of the United States will have to take up the task